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Local Boat Captains Join Federal Sea Bass Lawsuit

OCEAN CITY – One of the most important fisheries for Ocean City and the entire East Coast, black sea bass, was closed abruptly and without warning in October, forcing a handful of local captains to join a national recreational fishing advocacy group in a multi-party lawsuit with plaintiffs from North Carolina to Maine against the federal agency that shut it down.

Based on estimated catch data that showed black sea bass anglers up and down the east coast had exceeded the quota for the species by 800,000 fish, the National Marine Fisheries Service (NMFS) without warning in October closed the fishery for six months and promised larger minimum keeper sizes, smaller creel limits and shorter seasons for 2010.

The sudden closure comes in the midst of what is typically a robust fall fishing season in the resort and other communities up and down the coast, causing undue economic hardship for those on the front lines of the industry and a considerable trickle-down for the businesses associated with fishing.

In response, the Recreational Fishing Alliance (RFA), a national advocate for the industry, joined by 11 other plaintiffs including two Ocean City charter boat captains and several individuals and groups in neighboring Delaware and New Jersey, earlier this month filed suit in U.S. District Court against NMFS seeking an immediate injunction against the federal agency to reverse the decision and go back and review more accurate data before arbitrarily closing the fishery.

Among the local plaintiffs in the suit are Ocean Princess Captain Victor Bunting and Judith M Captain Mike Abbaticchio, who, like so many other head boat operators in the resort, rely on an open and active black sea bass fishery for their livelihoods.

The RFA filed the suit in U.S. District Court in New Jersey in early November and is hoping to get it in front of a judge at an expedited pace, given the thousands of dollars lost each day the fishery is closed. The closure was based on data provided by Marine Recreational Fisheries Statistics Survey (MRFSS), a quasi-governmental agency that collects catch information through informal angler surveys, typically over the telephone, and extrapolates small numbers over a much larger sample group, often an entire fishery encompassing several states.

NMFS officials have said in the past the MRFSS numbers are not always reliable, but absent another system, the federal agency relies on the data when making weighty decisions on closures, season lengths and minimum size and creel limits. Nonetheless, NMFS used the data to warrant the closure of the sea bass fishery in the height of the fall season, which precipitated the lawsuit.

“This closure was unprecedented for a fish whose stocks are considered rebuilt, not overfished, and not subject to overfishing,” the complaint reads. “The closure was largely based upon the misapplication and misuse of a fatally flawed angler survey which NMFS itself has acknowledged is not to be used for this type of decision. The result of this closure is social and economic devastation to the marine recreational fishing community.”

During the fall months, black sea bass are primarily found in federal waters in excess of three miles from shore. During the winter months, the fish are found exclusively in federal waters because they spend their winters in and around the vast canyons off the east coast. Although they may be fished for in state waters, there is little or no activity because of their offshore migration, essentially curtailing the recreational fishing business during the fall and virtually eliminating it during the winter.

While the immediate intent of the suit is to rectify what is believed to be a flawed decision on the black sea bass closure in the short term, Bunting said this week it could have long-term implications on black sea bass going into next season, and, more importantly, federal fisheries policy in general.

“If we do not win this suit, there is not going to be a sea bass fishery anywhere next year – not in Ocean City, North Carolina, New Jersey or anywhere on the east coast,” he said. “We had to take a stand. If NMFS gets their way on this, they can shut down any fish any time they want for any reason without going through the proper channels and following the same procedures the federal government instructed them to.”

While the implications of the suit are broad, the immediate concern is to rectify the situation with the black sea bass fishery, which is the staple for the vast head boat and party boat industry in Ocean City.

“This is a very scary time for us,” said Bunting. “This is a very important fish for us. It’s like going to Starbucks and not being able to order coffee. Nobody would go and it’s the same for fishing. Nobody will come if they can’t catch fish.”

Bunting said NMFS considered only the hard catch data without any consideration when it abruptly closed the black sea bass fishery in October, despite federal insistence the agency consider all socio-economic implications of the closure.

“We’re talking about thousands and thousands of dollars,” he said. “We’re in a real jam with this, and it’s not just the boats. It’s the tackle shops, the marinas, the guys who sell fuel and bait and even the hotels and restaurants. A lot of people come here just to fish, and if they can’t catch fish, they just won’t come.”

According to the MRFSS data that led NMFS to abruptly close the sea bass fishery, anglers have exceeded the stated catch limit for sea bass by around 800,000 fish. However, other federal estimates suggest the sea bass stock has completely rebounded and is now at around 105-percent of its desired level.

Ironically, the MRFSS totals for Maryland are incredibly low with just 1,356 keepers caught by the head boats and party boats and no keepers recorded by individual, private boats. Bunting pointed out the totals for another state came in at 250,000 fish caught by for-hire charter boats and another 250,000 caught by anglers on private boats, but that state does not have a considerably larger effort than Maryland.

“You can see how the numbers are all out of whack,” he said. “The survey numbers are fatally flawed. The numbers for Maryland are ridiculously low, but if they are so off base, it stands to reason they can be so off base in the other direction. They really have no idea what the real numbers are, and yet they abruptly closed the most important fishery.”

With the RFA suit now slogging its way through the court system, the dozen plaintiffs are hoping to get it in front of a judge sooner rather than later.

“The best outcome is that we win this suit and the federal government forces NMFS to put the regulations back to the same as they are for this year,” said Bunting. “Then, NMFS would have to go back and look at all the numbers and review all of the science at their disposal before making any decisions for 2010.”

For Bunting, Abbaticchio and the dozens of other local charter captains that rely on a healthy black sea bass fishery, the decision could be a matter of making it or not.

“Just shutting it down like this is devastating,” he said. “It is so vital that we win this. If we don’t, we’re looking at no sea bass fishery in 2010, or size limits and keeper limits and a season so short it wouldn’t do anybody any good. Whether our businesses could survive that or not, well, we aren’t sure, but it would be devastating.”